Wednesday, March 19, 2014

Ind. Decisions - Indiana and Massachusetts "upskirting" decisions

The Supreme Court decision yesterday in David S. Delagrange v. State of Indiana (ILB summary here) was the subject of a brief Indianapolis Star story today headed "Supreme Court upholds conviction mall shoe-cam peeper." From the story:

The Indiana Supreme Court on Tuesday upheld the conviction of a man who videotaped up the skirts of girls at Castleton Square Mall.

The court affirmed a conviction of David Delagrange on charges of attempted child exploitation and reversed an appellate court ruling.

Delagrange was arrested in 2010 at the mall after he was discovered to be using a camera on his shoe to shoot videos up the skirts of four girls between 15 and 17 years old.

Delagrange would place his foot between the feet of girls standing at the mall and activate the video with a fishing line.

The appellate court threw out the conviction because Delagrange did not video any private parts, just undergarments.

But the Supreme Court said even though he got no obscene footage, it could reasonably be deducted that he tried to and the conviction met the legal standard of “attempted” child exploitation.

Voyuerism charges against Delagrange were dropped because Indiana law did not specifically ban the type of videotaping done by Delagrange did. The law has been changed.

Earlier this month Massachusetts' highest court came to an opposite conclusion. [ILB: However, note that although the photographic efforts appear similar, the statutory offenses involved in the two states are not exactly parallel.]From a CNN story by Haimy Assefa, headed "Massachusetts court says 'upskirt' photos are legal." Some quotes:

Massachusetts' highest court ruled Wednesday that it is not illegal to secretly photograph underneath a person's clothing -- a practice known as "upskirting" -- prompting one prosecutor to call for a revision of state law.

The high court ruled that the practice did not violate the law because the women who were photographed while riding Boston public transportation were not nude or partially nude.

"A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is 'partially nude,' no matter what is or is not underneath the skirt by way of underwear or other clothing," wrote Justice Margot Botsford of the state Supreme Judicial Court. * * *

Prosecutors had argued that the current statute, which prohibits secretly photographing or videotaping a person who is "nude or partially nude," includes upskirting, according to documents.

But Robertson's lawyers argued that the female passenger on the trolley was not "nude or partially nude" and was not in a place where she had a reasonable expectation of privacy, according to court documents.

"Every person, male or female, has a right to privacy beneath his or her own clothing," Suffolk County District Attorney Daniel Conley said in a statement Wednesday. "If the statute as written doesn't protect that privacy, then I'm urging the Legislature to act rapidly and adjust it so it does."

Notably, a CNN story two days later, March 7th, by Jessica Ravitz, reports:

Gov. Deval Patrick signed a bill Friday, according to his office, making photographing or recording video under a person's clothing -- think down a blouse or up a skirt -- a misdemeanor.

"The legislation makes the secret photographing, videotaping, or electronically surveiling of another person's sexual or other intimate parts, whether under or around a person's clothing or when a reasonable person would believe that the person's intimate parts would not be visible to the public, a crime," Patrick's office said in a prepared statement.

The crime is punishable by up 2½ years in jail or a fine of up to $5,000.

In addition, the law states that "whoever videotapes or photographs, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child" faces a sentence of 2½ to 5 years and up to a $5,000 fine. The law goes into effect immediately. * * *

Lawmakers hastily drew up and passed the bill Thursday, a day after the state's highest court ruled that current laws against secretly photographing a person in a state of partial nudity don't apply to these sorts of secretive shots.